N. J. Turnpike Co. v. Hall, et al.

declaration to be inserted in the writ, in order to remove the ground of his fears.

In bailable actions, the affidavit always on file, when the writ issues, will disclose to a defendant the true cause of action; and in case of a Judge's order, the affidavits on which the order is founded are generally, and ought always to be, filed by the Judge: if the defendant is really ignorant of the cause of his arrest, he can be at no loss to discover the specific ground of action, by an appeal to the Judge who made the order, or procuring a copy of the affidavits, as was.done in this very case.

The court, are therefore of opinion, that the cause of action is sufficiently expressed in this writ, and the motion must be denied; but without costs, as this matter seems not hitherto to have undergone any discussion or judicial decision, before the

court.

Motion denied.

THE NEW JERSEY TURNPIKE CO. v. HALL, ET AL.* Certiorari in matter of Turnpike Gate.

Whenever a court or any person, acting under legal authority, is to act judicially, or to exercise a discretion in a matter affecting the rights of another, the party thus to be affected, is to have reasonable notice of the time and place when and where such act is to be done, to the end that he may be heard in defence, or for the protection of those rights.

Hartwell for plaintiff.

Hamilton, contra.

HORNBLOWER, C. J., delivered the opinion of the court. By a supplement to the act incorporating the New Jersey Turnpike Company, passed the 15th Feb. 1816, it is enacted that upon

N. J. Turnpike Co. v. Hall, et al.

complaint made to a Justice of the Peace, who may be disinterested, that the road is out of repair, "he shall, at the expense of the Company, in ten days after giving notice to the keeper of the nearest gate, appoint by writing, under his hand and seal, three of the township committee of the township adjoining, who shall be disinterested in the said road," who, on notice given to the keeper of the "nearest gate," shall meet, and after taking an oath to act impartially, shall proceed, &c.

A complaint, in the manner directed by the statute, having been exhibited to the Justice on the 20th Dec., 1836, he issued a notice in writing, bearing date the same day, to "David Whitehead, gate keeper of the New Jersey Turnpike," informing him of the complaint, and concluding as follows: "You are therefore notified that said committee men will be appointed after ten days." This notice, as appears by an affidavit sent up with the papers, purporting to have been made before the Justice, on the 14th of January, 1837, was served on Whitehead on the 20th December, the same day it was issued. On the 6th of January, 1837, which was seventeen days after the date and service of the said notice, in the absence of the gate keeper, or any person on behalf of the Company, and as appears, before the Justice had any legal evidence, that the notice had been served, he, under his hand and seal, appointed three committee men, to view the road.

On the 9th of January, which was 20 days after the date and service of the notice of the complaint, the Justice directed another notice to the same gate keeper, informing him that three of the township committee, of the township of Readington, naming them, would meet, &c. on the 14th of January, 1837, at 10 A. M. and thence proceed immediately to view the road, &c.

On the 14th January, 1837, the committee met, were sworn, proceeded to view the road, and reported the same to be out of repair whereupon, the Justice issued his mandate to the gate keeper, commanding him to open the gates and to keep them opened until otherwise ordered.

To set aside and quash this order, is the object of the plaintiff in Certiorari.

The objection is, that the notice to the gate keeper was irregular, and consequently the appointment of the committee men ex parte and unlawful.

N J. Turnpike Co. v. Hall, et al.

Independent of the express provision in this statute, requiring a notice to be served on the nearest gate keeper, no principle or rule of action, is better settled at the common law, than that whenever a court or any person acting under legal authority, is to act judicially, or to exercise a discretion in a matter affecting the rights of another, the party thus to be affected, is to have reasonable notice of the time and place, when and where such act is to be done, to the end that he may be heard in defence, or for the protection of those rights. See Youngs v. Overs. of Hardiston, 2 Green, 520, and cases there cited by the court. It is insisted, however, in this case, 1st, that notice was given according to the statute, and 2dly, if not, the irregularity was cured by the appearance of the Company, by their counsel, before the committee. It is a sufficient answer to the latter suggestions, that the Company did not recognize the right of the committee to act in the premises, but objected to the regularity of their appointment, in which they were overruled. Was then the notice such as the law requires?

The statute directs, that the Justice, "in ten days after giving notice, shall appoint, &c." This is clearly equivalent to saying, "shall appoint, upon ten days notice given," or, "ten days after notice given." The construction contended for by the counsel of the defendants, that the Justice may at any time. after ten days notice has been given of the complaint, proceed to make the appointment, would render the notice nugatory and useless. The notice is not only to be that a complaint has been made; but of the time and place when and where committee men will be appointed; and it is all important to the Turnpike Company, that they should have such notice. They would have a right to question the sufficiency of the complaint; the jurisdiction of the Justice; his disinterestedness; the validity of the notice, and the qualifications of the committee men: upon all these mattters and perhaps others, the Company had a right to be heard, and to have the judicial determination of the Justice.— The Justice in this case, did not even follow the words of the act -instead of saying that committee men would be appointed "in ten days after that notice," he gives notice that they would be appointed "after ten days"-that is, at any time and place he pleased to do so, after the expiration of ten days from the date of

the notice.

McClure v. Gulick.

And so the Justice undoubtedly understood it himself: for he did not make the appointment, at the end of ten days from the date, or from the service of the notice; but he made it sixteen days after the date and before he had any legal evidence that it had been served at all.

This was error, and the whole proceeding and order must be quashed and set aside.

NEVIUS, Justice, being a stockholder, gave no opinion.

Order quashed.

CITED in State v. Jersey City, 4 Zab. 666; State v. Newark, 1 Dutch. 411–412.

MCCLURE v. GULICK.*

On award of arbitrators. Motion for attachment.

It is not too late to make a submission to arbitrators, a rule of court, after an award made.

An agreement of the parties, to substitute other arbitrators, in the place of those first named, being indorsed on the original submissio, with an express reference to what it contains, is equally obligatory as if they had been originally named in the submission; and authorizes a rule of court to be made thereon.

An attachment for not performing an award, strictly speaking is a criminal proceeding, though in some respects as in the nature of civil process; and will be awarded of course, unless good cause or excuse be shewn why it should not.

On the 17th Sept. 1830, the parties submitted, by agreement under their hands and seals, their matters in difference, to the final determination and award of Charles Parker, Peter Spader, and Joseph C. Griggs, or of any two of them: such submission to be made a rule of this court, agreeably to the statute in such case made and provided. On the 24th of October, 1836, by writing indorsed on the submission, and executed under their

* Decided orally at Sept. Term, 1839.

McClure v. Gulick.

hands and seals, the parties agreed that Staats Van Deurson, should be substituted as one of the arbitrators in the place of Charles Parker before named. On the 12th May, 1837, a further agreement in writing, also endorsed on the same submission. was executed by the parties, under their hands and seals, by which, James Bishop was substituted as one of the arbitrators, in the place of Peter Spader one of the first named arbitrators; and it was thereby, in terms, agreed that the said arbitration should proceed before the said Staats Van Deurson, Joseph C. Griggs, and James Bishop, as arbitrators of the said matters in difference. On the 22d of May, 1837, the three last named arbitrators, made an award, whereby among other things, they awarded to McClure, the sum of $1146 45, to be paid to him by Gulick on or before the 15th of June then next ensuing; and that on payment thereof, McClure should release, &c.

In the term of Feb. 1839, upon hearing the affidavits of Jas. S. Green, Samuel R. Hamilton and Cornelius L. Hardenbergh, Esqs. subscribing witnesses to the said submission and the several substitutions aforesaid, it was ordered that the said submission be entered of record in this court, and that the said parties should submit to, and be finally concluded by the arbitrament of the arbitrators last aforesaid, pursuant to the said submission.

In the term of May, 1839, upon affidavits being read, shewing that McClure by his duly authorized agent for that purpose, had tendered to Gulick, a release, and demanded payment of the sum awarded, and that he had refused to pay the same, it was ordered that Gulick shew cause why an attachment should not issue, &c.

Upon an affidavit of the service of a copy of this rule upon Mr. Gulick and of a notice that the court would be moved to make the rule absolute at this term, (Sept. T. 1839) the Attorney General (R. S. Field) in behalf of McClure moved for an attachment which was opposed by

J. S. Green for Gulick.

Opinion of the court delivered by